When a REALTOR® lists a property for sale, as part of their due diligence, they search the property title for encumbrances like liens, unpaid taxes, and restrictive covenants.
A restrictive covenant is a legal document detailing restrictions on how a property can be used. Covenants are attached to a property title and registered at the BC Land Titles and Survey Authority (LTSA) decades ago.
Realtors often see covenants restricting tree height and building size to protect views, according to Cal Lindberg, a former CREA and REVGB president.
“Occasionally Realtors also see covenants restricting sale and ownership based on race and nationality,” said Lindberg. They’re a powerful reminder of a not-so-distant era of overt racism and discrimination.
Restrictive covenants haven't been legal in BC since 1978. The government amended the Land Title Act, section 222 to nullify covenants restricting the sale, ownership, occupation, or use of land because on the sex, race, creed, colour, nationality, ancestry, or place of origin of a person.
But the discriminatory wording on covenants may still be there.
That's because paper-based covenants on property titles registered at the LTSA before then were copied and saved on microfilm, according to Ron Usher, general counsel for the Society of Notaries Public of BC.
"Discriminatory covenants may be embedded in the microfilm as a partial clause or a paragraph within a much larger document containing legally valid and binding covenants that are useful now and may also be in the future," Usher said.
"These could include covenants about property use – for example, a paragraph prohibiting renting rooms or operating a daycare."
To remove each discriminatory paragraph from any number of the more than two million property titles province-wide would likely be a time-consuming and costly process.
If the documents are digital, the LSTA may be able to digitally alter and amend the register and records to reflect that the covenants aren’t valid and are cancelled as per the Land Title Act, s. 222.
How many discriminatory covenants are there?
"It’s impossible to estimate the number of race-based restrictive covenants on property titles," said Usher. “There could be thousands. They were common in Vancouver, West Vancouver, North Vancouver, and Victoria, and there’s no way of knowing the exact numbers.”
Often, the current owner doesn't know they exist.
If a Realtor finds a discriminatory covenant on title, they let their clients know about it.
A property owner who wants the covenant removed can ask the Land Title and Survey Authority (LTSA) to do so. Requests can be made:
- online through the LTSA Customer Service Centre; or
- in writing by mail to: Registrar, New Westminster Land Title Office, Suite 300-88 Sixth Street, New Westminster, British Columbia, Canada, V3L 5B3.
There’s no charge.
For information, contact your Realtor.